1 Jeffrey A. Koncius, State Bar No.

189803
koncius@kbla. com
2 KIESEL + LARSON LLP
8648 Wilshire Boulevard
3 Beverly Hills, California 90211-2910
Tel: 310-854-4444
4 Fax: 310-854-0812
5 Robert Katz
rkatz@katzlawpllc. com
6 KATZ PLLC
-o
:X
'I!
6060 N. Central Expressway, Suite 570
l5
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7 Dallas, Texas 75206
Tel: 214-865-8000
Fax: 888-231-5775

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Attorneys for Plaintiff,
Z PRODUX, INC.
16 Z PRODUX, INC.
17
18
v.
Plaintiff,
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
C 0 0 7 3 4t:Mot J
COMPLAINT FOR PATENT
INFRINGEMENT
19 MAKE-UP ART COSMETICS, INC.
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JURY TRIAL DEMANDED
Defendant.
COMPLAINT FOR PATENT INFRINGEMENT
24 Z Produx, Inc. ("Z Produx" or "Plaintiff') sues Defendant Make-Up Art Cosmetics, Inc.
25 ("MAC" or "Defendant") for design patent infringement and on information and belief, alleges as
26 follows:
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1.
,.
INTRODUCTION
Plaintiff Z Produx has been assigned all rights, title, interest in and to the design
COMPLAINT FOR PATENT INFRINGEMENT
1 claimed in United States Design Patent No. D642, 743 (the '"743 Patent" or "the patent-in-suit"),
2 entitled "Cosmetic Holder" including the right to sue for past infringement. Defendant has used and
3 continues to use Z Produx's patented designs in products that it makes, uses, sells, and offers to sell,
4 without Z Produx' s permission. Z Produx seeks damages and/or a disgorgement ofDefendant' s total
5 profits for patent infringement and an injunction preventing Defendant from making, using, selling, or
6 offering to sell, and from inducing others to make, use, s e l ~ or offer to sell Z Produx's patented
7 designs without permission.
8 JURISDICTION & VENUE
9 2. This is an action for patent infringement arising under the patent laws of the United
10 States, 35 U.S.C. I, et seq. The Court has original jurisdiction over this patent infringement action
11 pursuant to 28 U.S.C. 1331, 1338(a).
12 3. This Court has personal jurisdiction over Defendant and venue in this judicial district is
13 proper because, on information and belief, Defendant engages in continuous and systematic business
14 within the United States and within this judicial district and/or Defendant has placed infringing
15 products into the stream of commerce by selling and/or offering to sell products into the United States
16 and this judicial district with knowledge that such products would be shipped into and/or used in the
1 7 United States and this judicial district.
18
PLAINTIFF Z PRODUX
19 4. Z Produx is a corporation organized and existing under the laws of the State of
20 California, with its principal place ofbusiness in Sherman Oaks, California.
21 5. Z Produx's Z Palette product line was conceived and designed by Zena Shteysel, a
22 make-up artist who has worked with Laila Ali, Mel B., Kelly Osbourne, Melissa Joan Hart, and
23 Brooke Burke to name a few. An image of the Z Palette "Black Large Palette" appears below:
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2 COMPLAINT FOR PATENT INFRINGEMI::'NT
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9 6. Z Produx's designs are embodied in the line of Z Palette products, which are
10 customizable empty makeup palettes which have an open bottom to fit the colorpans that the user
11 chooses. Z Produx's Z Palette line is sold online on its website, www.zpalette.com, and at retailers
12 such as Alcone LLC, Naimies Beauty Supply, Beauty.com, Cinema Secrets, Makeup Mania, Nigels
13 Beauty Supply, MakeupGeek.com and Frends Beauty Supply.
14 7. Z Produx launched its Z Palette line in May 2009. Z Palette quickly became a
15 success, being touted as "stylish" and "Z Greatest" in beauty and make-up magazines. For example, Z
16 Palette was featured in the Spring 2010 issue of GenLux as GenLux's Beauty Editor's Picks. Z
17 Palette also appeared in America Salon in April 2011, Self Magazine in March 2011, Juicy
18 Magazine in January 2011, Beauty Store Business in January 2011, yhc in July 2010, America Salon
19 inJune2010, Make-Up Artist inlssue#83 and in TTLRN inApril2010. Furthermore, theZPalette
20 has been praised by Jennifer Grey, Laila Ali, Kate Gosselin, Chelsie Hightower, Brandy and others.
21 ZPRODUX'S DESIGN PATENTS
22 8. The United States Patent and Trademark Office issued the '743 Patent on August 2,
23 2011. A copy of the '743 Patent is attached hereto as Exhibit A. Z Produx is the owner by
24 assignment of all right, title, and interest in the '743 Patent, including the right to sue for past
25 infringement.
26 9. Z Produx has complied with the statutory requirement of placing a notice of the patent-
27 in-suit on all necessary products it manufactures and sells.
28
3 COMPLAINT FOR PATENT INFRINGEMENT
1 DEFENDANT MAC
2 1 0. On information and belief, MAC is a corporation organized and existing under the laws
3 of the State ofDelaware, with its principal place ofbusiness in Melville, New York. Further, MAC is
4 registered to do business in the State of California, maintaining as its agent for service of process CSC
5 - Lawyers Incorporating Service located at 2710 Gateway Oaks Drive, Suite 150N, Sacramento,
6 California 95833.
7 MAC'S ACTS OF INFRINGEMENT
8 11. Defendant has used and continues to use the designs of the patent-in-suit in products
9 that it makes, uses, sells, and offers to selL without Z Produx's permission, including, without
10 limitation, Defendant's "Pro Palette Large/Single" (having UPC 7-73602-23605-3) (the "Knock-Off
11 Palette"). An image of the Knock-OffPalette appears below:
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21 12. On information and belief, MAC intentionally designed the Knock-OffPaletteto copy
22 the design embodied by the patent-in-suit, in order to tradeoff of the innovative, patented designs that
23 are associated with Z Produx's Z Palette line of make-up palettes. The design ofthe Knock-Off-
24 Palette is strikingly similar to the design of Z Produx's Z Palette line of make-up palettes and the
25 design embodied by the patent-in-suit.
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4 COMPLAINT FOR PATENT INFRINGEMENT
1
COUNT I
2 DESIGN PATENT INFRINGEMENT, 35 U.S.C. 271
3 13. Z Produx incorporates the allegations contained in paragraphs 1 through 12 as though
4 fully set forth herein.
5 14. MAC has been and, on information and belief, still is making, using, offering to sell,
6 selling, and/or importing in the State of California, this judicial district and elsewhere in the United
7 States, Knock-Off-Palettes that infringe the '743 Patent in violation of35 U.S.C. 27l(a).
8 15. On information and belief, MAC has been and is now indirectly infringing the '743
9 Patent pursuant to 35 U.S.C. 271(b) and/or (c) by intentionally inducing infringement and/or
10 contributing to the infringement of the '743 Patent in the State of California, this judicial district, and
11 elsewhere in the United States by providing and/or selling the Knock-Off-Palettes to customers and/or
12 users ofthose products.
13 16. On information and belief, MAC's infringement has been intentional and willful,
14 making this an exceptional case.
15 17. Z Produx has been damaged and injured by Defendant's infringement ofthe '743
16 Patent. Because of its infringing acts and for its unauthorized use of the inventions claimed in the
17 '743 Patent, Defendant is liable to Z Produx for damages in an amount no less than a reasonable
18 royalty.
19 18. ByreasonofMAC's infringement, ZProduxhas suffered, and unless MAC's conduct
20 is permanently enjoined, will continue to suffer, actual damages and irreparable harm, as to which it
21 has no adequate remedy at law.
22 PRAYER FOR RELIEF
23 WHEREFORE, Z Produx respectfully requests that this Court:
24 1. Enter judgment in favor ofZ Produx;
25 2. Permanently enjoin MAC and its predecessors, successors, divisions, subsidiaries, or
26 joint ventures thereof, together with any and all parent or affiliated companies or corporations, and all
27 officers, directors, employees, agents, attorneys, representatives, those acting in privity or concern
28 with MAC, or on its behalf, from further infringing the '743 Patent, and from inducing others to
5 COMPLAINT FOR PATENT INFRINGEMENT
1 infringe the '743 Patent;
2 3. Award Z Produx its actual damages under 35 U.S.C. 284 in an amount to be
3 determined at trial;
4 4. Award Z Produx enhanced damages up to three times the amount found or assessed
5 under 35 U.S.C. 284, as a result of MAC's knowing and willful infringement;
6 5. Award Z Produx the disgorged total profits of MAC under 35 U.S.C. 289 from
7 infringing the patent-in-suit in an amount to be determined at trial;
8 6. Award Z Pro dux punitive damages because of MAC's knowing, willful, and deliberate
9 bad faith acts of unfair competition in an amount to be determined at trial;
10 7. Award Z Produx pre-judgrnent and post-judgrnent interest;
11 8. Award Z Produx all of its actual costs and reasonable attorneys' fees in this action as
12 authorized by 35 U.S.C. 285; and
13 9. Grant to Z Produx such other and further relief as may be just and warranted under the
14 circumstances.
15 JURY TRIAL DEMAND
16 Z Produx demands a trial by jury on all issues so triable.
17
18 DATED: January 31, 2013
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KIESEL+ LARSON LLP
By:
6 COMPLAINT FOR PATENT INFRINGEMENT
IIIII
~
1 1 1 1 1 1 ~ 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 ~ 111111
(12) United States Design Patent
Shteysel
(54) COSMETIC HOLDER
(76) Inventor: Zena Shteysel, Sherman Oaks, CA (US)
(**) Term: 14 Years
(21) Appl. No.: 29/359,687
(22) filed: Apr. 14, 2010
(51) LOC (9) Cl. .......... .... ............ ......... ........ ....... 28-03
(52) U.S. Ct . ....................................................... D28/83
(58) Field of Classification Search .................. 206/823.
(56)
206/581; D28173, 76-84, 64.1; 132/286-288,
132/293-307.314-318
See application file for complete search history.
References Cited
U.S. PATENT DOCUMENTS
0422,120 s
0453,859 s
0477,895 s
0480.837 s
0485,018 s
0503,245 s
0597,256 s
0601.757 s
0603.564 s
3i2000 Orsomando ............. 028!83
2/2002 Spearman . 028/77
7/2003 Goswell . .. 028/83
10/2003 Liu .............. .. ... 028/83
1!2004 Beilman ....................... 028177
3/2005 Vanoncini ..................... 028:78
7/2009 Liden ............................. 028/83
I 0/2009 Sage! ............................. 028/83
11!2009 Liden ............................. 028.'83
* cited by examiner
Primary Examiner Jennifer Rivard
(7 4) Attorney, Agent, or Hrm Stroock & Stroock & Lavan
LLP
USOOD642743S
(IO) Patent No.:
(45) Date of Patent:
(57) CLAL'\1
US D642,743 S
** Aug. 2, 2011
'!he ornamental design for the cosmetic holder, as shown and
described.
DESCRIPTION
fiG. 1 is a perspective view of the cosmetic holder in accor-
dance with a first embodiment of the invention:
fiG. 2 is a top plan view thereof;
fiG. 3 is a front elevational view thereof;
FIG. 4 is a side elevational view thereof from either side
thereof;
FIG. 5 is a rear elevational view thereof;
FIG. 6 is a bottom plan view thereof;
FIG. 7 is a perspective view of the cosmetic holder depicted in
FIG. 1, with cosmetic containers therein (which cosmetic
containers form no part of the claimed design);
FKi. 8 is perspective view of the cosmetic holder in accor-
dance with a second embodiment of the invention;
FIG. 9 is a top plan view thereof;
FIG. 10 is a front eievationai view thereof;
FIG. 11 is a side elevational view thereof from either side
thereof;
FIG. 12 is a rear elevational view thereof:
FIG. 13 is a bottom plan view thereof; and,
FIG. 14 is a perspective view of the cosmetic holder depicted
in FIG. 8, with cosmetic containers therein (which cosmetic
containers form no part of the claimed design).
The broken Jines shown in the drawings illustrate cosmetic
containers and iorm no part ofthe claimed design.
1 Claim, 6 Drawing Sheets
U.S. Patent Aug. 2, 2011 Sheet 1 of 6 US D642, 743 S
FIG.1
FIG.2
U.S. Patent Aug. 2, 2011 Sheet 2 of 6 US D642,743 S
FIG.3
FIG.S
FIG.4
FIG.6
U.S. Patent Aug. 2, 2011 Sheet 3 of6 US D642, 743 S
FIG.7
U.S. Patent Aug. 2, 2011 Sheet 4 of 6
FIG.8
I I
I
FIG.9
US D642,743 S
U.S. Patent Aug. 2, 2011 Sheet 5 of 6 US D642,743 S
FIG.1 0
FIG.12
FIG.11
FIG.13
U.S. Patent Aug. 2, 2011 Sheet 6 of6 US D642, 743 S
FIG.14
UNITED DISTRICT CALIFORNIA
CIVIL COVER SHEET
DEFENDANTS I (a) PLAINTIFFS (Check box if you are representing yourself D)
Z PRODUX, INC.
MAKE-UP ART COSMETICS, INC
(b) Attorneys (Finn Name, Address and Telephone Number. If you are representing
yourself, provide same.)
Jeffrey A. Koncius, Esq., KIESEL+ LARSON LLP
8648 Wilshire Blvd., Beverly Hills, CA 90211
Tel (310) 854-4444; Fax (310) 854-0812
Attorneys (If Known)
H. BASIS OF JURISDICTION (Place an X in one box only.) Ill. CITIZENSHIP OF PRINCIPAL PARTIES- For Diversity Cases Only
{Place an X in one box for plaintiff and one for defendant.)
0 1 US. Government Plaintiff "3 Federal Question (U.S. PTF DEF PTF DH
Government Not a Pany) Citizen of This State I Dl Incorporated or Principal Place 4 04
of Business in this State
0 2 U.S. Government Defendant 0 4 Diversity (Indicate Citizenship Citizen of Another State 02 02 Incorporated and Principal Place 05 05
of Parties in Item III) of Business in Another State
Citizen or Subject of a Foreign Country 0 3 0 3 Foreign Nation 06 C6
IV. ORIGIN (Place an X in one box only.)
Mt Original C 2 Removed from 0 3 Remanded from
Proceeding State Court Appellate Court
0 4 Reinstated or
Reopened
0 5 Transferred from another district (specify): 0 6 Multi-
District
Litigation
0 7 Appeal to District
Judge from
Magistrate Judge
V. REQUESTED IN COMPLAINT: JURY DEMAND: FfYes 0 No (Check 'Yes' only if demanded in complaint.)
CLASS ACTION nnder F.R.C.P. 23: 0 Yes r:fNo !if' MONEY DEMANDED IN COMPLAINT:$
VI. CAUSE OF ACTION (Cite the U.S. Civil Statute under which you are filing and write a brief statement of cause. Do not cite jurisdictional statutes unless diversity.)
35 US.C 271 and 281 --Plaintiff is alleging that Defendant infringed on U.S Design Patent No. D642,743
VII. NATURE OF SUIT (Place an X in one box only.)
cmDll. STATUTES CONTRACI' TORTS roars PRISONER LABOR
0400 State Reapportionment 0110 Insurance PERSONAl INJURY PERSONAL Pm1110NS 0710 Fair Labor Standards
0410 Antitrust 0120 Marine
0310 Airplane PROPERTY 0 510 Motions to Act
0430 Banks and Banking 0130 Miller Act
0315 Airplane Product
0 370 Other Fraud Vacate Sentence C720 Labor!Mgmt.
0450 Commerce/ICC 0140 Negotiable Instrument
Liability
0371 Truth in Lending Habeas Corpus Relations
Rates/etc. 0150 Recovery of
0320 Assault, Libel &
0 380 Other Personal 0 530 General 0730 Labor/Mgmt.
0460 Deportation Overpayment &
Slander
Property Damage 0 535 Death Penalty Reporting &
0470 Racketeer Influenced Enforcement of
0 330 Fed. Employers'
0 385 Property Damage 0 540 Mandamus/ Disclosure Act
and Corrupt Judgment
Liability
Product Liability Other 0740 Railway Labor Act
Organizations 0151 Medicare Act
0340 Marine
BANkRUPTCY 0 550 Civil Rights 0 790 Other Labor
0345 Marine Product
0480 Consumer Credit 0152 Recovery of Defaulted
Liability
0 422 Appeal28 USC 0 555 Prison Condition Litigation
0490 Cable/Sat TV Student Loan (Excl.
0350 Motor Vehicle
158 FORF'EITURE I 0 791 Empl. Ret. Inc.
0 810 Selective Service Veterans}
0 355 Motor Vehicle
0423 Withdrawal28 PI1NAL1Y Security Act
0 850 Securities/Commodities/ 0153 Recovery of
Product Liability
usc 157 0 610 Agriculture PflOPER.lY RIOHTS
Exchange Overpayment of
0360 Other Personal
CMLRIOHTS 0 620 Other Food & Copyrights
0 875 Customer Challenge 12 Veteran's Benefits
Injury
0441 Voting Drug 830 Patent
usc 3410 0160 Stockholders' Suits
0362 Personal Injury-
0442 Employment 0625 Drug Related 0 840 Trademark
0890 Other Statutory Actions 0190 Other Con tract
Med Malpractice
0443 Housing/ Acco- Seizure of SOCIAL SECURITY
0891 Agricultural Act 0195 Contract Product
0365 Personal Injury-
mmodations Property 21 USC 0 861 HIA (I 395ft)
0 892 Economic Stabilization Liability Product Liability 0444 Welfare 881 0 862 Black Lung (923}
Act 0 196 Franchise 0368 Asbestos Personal 0445 American with 0630 Liquor Laws 0 863 DIWC/DIWW
0 893 Environmental Matters REAL PROPERlY Injury Product Disabilities 0640 R.R. & Truck (405(g))
0894 Energy Allocation Act 0210 Land Condemnation Liability Employment 0 650 Airline Regs 0 864 SSID Title XVI
0895 Freedom of Info. Act 0220 Foreclosure IMMIGRATION 0 446 American with 0660 Occupational 0 865 RSI (405(g))
0900 Appeal of Fee Deterrni- 0 230 Rent Lease & Ejectment 0462 Naturalization
Disabilities- Safety !Health FEDERAL TAX SUrrS
nation Under Equal 0240 Torts to Land
Application
Other 0690 Other 0870 Taxes (U.S. Plaintiff
Access to Justice 0245 Tort Product Liability
0463 Habeas Corpus-
0440 Other Civil or Defendant)
0950 Constitutionality of 0290 All Other Real Property
Alien Detainee
Rights 0 871 IRS-Third Party 26
State Statutes
0465 Other Immigration
USC7609
Actions
FOR OFFICE USE ONLY: Case Number:
AFTER COMPLETING THE FRONT SIDE OF FORM CV-71, COMPLETE THE INFORMATION REQUESTED BELOW.
CV-71 (05/08) CIVIL COVER SHEET Page I of2
'- u
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
CIVIL COVER SHEET
VIII( a). CASES: Has this action been previously filed in this court and dismissed, remanded or closed?
If yes, list casenumber(s): 12-cv-05040 PDP (RZx)
VIII( b). RELATED CASES: Have any cases been previously filed in this court that are related to the present case? riNo 0 Yes
lfyes, list case number(s): ------------------------------------------------------
Civil cases are deemed related if a previously filed case and the present case:
(Check all boxes that apply) 0 A. Arise from the same or closely related transactions, happenings, or events; or
0 B. Call for determination of the same or substantially related or similar questions of law and fact; or
0 C. For other reasons would entail substantial duplication of labor if heard by different judges; or
0 D. Involve the same patent, trademark or copyright, and one of the factors identified above in a, b or c also is present.
IX. VENUE: (When completing the following information, use an additional sheet if necessary.)
(a) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH named plaintiff resides.
0 Check here if the government, its agencies or employees is a named plaintiff. If this box is checked, go to item (b).
County in this District:* California County outside of this District; State. if other than California; or Foreign Counlty
Los Angeles County
(b) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH named defendant resides.
0 Check here if the government, its agencies or employees is a named defendant. If this box is checked, go to item (c).
County in this District: California County outside of this District; State. if other than California; or Foreign Counlty
New York
(c) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH claim arose.
Note In land condemnation cases use the location of the tract of land involved
'
County in this District:* California County outside of this District; State. if other than California; or Foreign Counlty
Los Angeles
*Los Angeles, Orange, San Bernardino, Riverside, Ventura, Santa Barbara, or San Luis Obispo Counties
Note: In land condemnation cases use the location ofthe tract of land volved
Notice to Counsel/Parties: Ibe CV-71 (JS-44) Civ Cover Sheet and the information contained herein neither replace nor supplement the filing and service of pleadings
or other papers as required by law. This form, approved by the Judicial Conference ofthe United States in September 1974, is required pursuant to Local Rule 3-1 is not filed
but is used by the Clerk of the Court for the purpose of statistics, venue and initiating the civil docket sheet. (For more detailed instructions, see separate instructions sheet.)
Key to Statistical codes relating to Social Security Cases:
of Suit Code Abbreviation
861 HIA
862 BL
863 DIWC
863 DIWW
864 SSJD
865 RSl
CV-71 (05108)
Substantive Statement of Cause of Action
All claims for health insurance benefits (Medicare) under Title 18, Part A, of the Social Security Act, as amended.
Also, include claims by hospitals, skilled nursing facilities, etc., for certification as providers of services under the
program. (42 U.S.C. 1935FF(b))
All claims for "Black Lung" benefits under Title 4, Part B, of the Federal Coal Mine Health and Safety Act of 1969.
(30 u.s.c 923)
All claims filed by insured workers for disability insurance benefits under Title 2 of the Social Security Act, as
amended; plus all claims filed for child's insurance benefits based on disability. (42 U.S.C. 405(g))
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Act, as amended. (42 U.S.C. 405(g))
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Act, as amended.
All claims for retirement (old age) and survivors benefits under Title 2 of the Social Security Act, as amended. (42
U.S.C'. (g))
CIVIL COVER SHEET Page 2 of2